STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST P. ROENBECK, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5329

)

CITY OF OCALA, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on February 4, 1994, and March 11, 1994 a formal hearing was held in this case. The authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Ocala, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: William A. Ramputi, Esquire

Scott, Gleason and Pope, P.A.

409 Southeast Fourteenth Street Ocala, Florida 34471

For Respondent: David H. Spalter, Esquire

Fisher and Phillips

2310 One Financial Plaza

Fort Lauderdale, Florida 33394 STATEMENT OF ISSUES

This case raises several issues. First, whether the Respondent unlawfully discriminated against the Petitioner on the basis of his physical disabilities in carrying out discipline against Respondent through imposition of reprimands. Second, whether Petitioner was unlawfully harassed by employees of the Respondent based upon his physical disabilities, in a setting in which Respondent unlawfully condoned a hostile working environment concerning Petitioner's claims of harassment due to his physical disabilities. Finally, whether Respondent unlawfully discriminated against Petitioner on the basis of physical handicap related to job duties performed by Petitioner for Respondent.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations had considered Petitioner's claims of discrimination, harassment and hostile work environment pertaining to his physical disabilities while employed by Respondent and determined that there was "no cause" for relief. Petitioner in turn sought review of that determination by filing a petition setting forth grounds for recovery which are summarized in the statement of issues. On September 13, 1993, the Florida

Commission on Human Relations notified Respondent of Petitioner's petition requesting review of the "no cause" determination. On October 1, 1993, Respondent filed its answer in opposition to Petitioner's request for review.

At hearing Petitioner testified. He also presented the testimony of Robert

1. Jayne, Charles R. Thigpen, Gloria M. Green, James W. Scarberry, Noel Werner, Edward Swift, Robert E. Buckley, Jr., Royal M. Holly and Patricia Roenbeck. Petitioner's Exhibits Nos. 1-11 were admitted. Respondent presented the testimony of Robert Lipps, Henry K. Hicks, Daniel E. Miller, Rodney Thompson and Carolyn Ingham. Respondent's Exhibits 1-6 and 8-12 were admitted. Respondent's Exhibit No. 7 was denied admission.

   
   

   The last installment of the hearing transcript was filed on March 22, 1994.

   At Respondent's request, and upon agreement by Petitioner, more than ten days were requested for the parties to prepare proposed recommended orders.

   Consequently, the requirements of Rule 28-5.042, Florida Administrative Code were waived as they relate to entry of the recommended order. See also Rule 60Q-2.031, Florida Administrative Code. The proposed recommended orders of the parties have been considered. Fact finding in the proposed recommended orders is commented on in an appendix to the recommended order.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner began employment with Respondent in November 1983. He was assigned to the Water and Sewer Department as a laborer. In 1986, Petitioner was transferred by the Respondent to the Water and Sewer Department water meter shop to be a water meter repairman. Petitioner continued his employment in that section until the spring of 1993. At that time, Petitioner accepted status under the Respondent's Disability Income Replacement policy. This arrangement is for an employee who is absent due to disability for more than 60 days. He then becomes eligible to receive payment of 60 percent of the employee's regular earnings.

      
      

   2. From the years 1986 into 1990, Petitioner enjoyed good health.

      
      

   3. During that period his employee work evaluations ranged from satisfactory to above satisfactory.

      
      

   4. In 1990, Petitioner developed psoriasis. In the beginning, the condition was controlled through medical treatment. However, in 1991, Petitioner was diagnosed with bladder cancer. As a result, while being treated for the bladder cancer in 1991 and 1992, to include two surgeries, Petitioner was unable to receive medical treatment for his psoriasis. Consequently the psoriasis became more severe.

      
      

   5. There was a change in supervisory personnel on April 4, 1991, which affected Petitioner's employment status together with that of other employees within the Water and Sewer Department. The change came about when Richard Davis, who headed the Water and Sewer Department was replaced by Henry Hicks. Respondent had found it necessary to replace Davis, because in Respondent's view Davis was not satisfactorily addressing the personnel issues within the Water and Sewer Department.

      
      

   6. When hired, one of the issues which Hicks felt he needed to address was a morale problem caused by employee perceptions that the Department of Water and Sewer employee rules were not being enforced in a consistent manner. Hicks was of the opinion that this perception existed, in part, because supervisors

      maintained a casual approach to employee counseling and discipline. Hicks, in his tenure, reminded the supervisors to formalize their procedures in dealing with employee counseling and disciplining. He required the supervisor provide documentation of any disciplinary action whether verbally given or by a written reprimand. This change in direction tended to increase the number of documented incidences of imposition of employee discipline within the Water and Sewer Department.

      
      

   7. The first employee evaluation which Petitioner received after Hicks' assumption of his position of director of the Water and Sewer Department was in 1991. The 1991 evaluation which Petitioner was given contained positive and negative remarks about Petitioner's work performance.

      
      

   8. In the spring of 1991, the Water and Sewer Department held a picnic, an activity in which the employees were encouraged to participate. As in prior years the Petitioner volunteered to be a member of the food committee for the picnic and was appointed to that committee. Members of the food committee would serve food at the picnic. At that time, the Petitioner's psoriasis was such that he was noticeably peeling and flaking. Howard Johnson, a supervisor with Respondent approached Hicks and told Hicks that several employees had stated that they, the employees, would not go to the picnic if Petitioner served food because they were afraid that Petitioner's skin would flake into the food. Having been apprised of this situation, upon a date prior to the picnic, Hicks met with Petitioner and told Petitioner what had been reported to Hicks and asked Petitioner to serve the needs of the picnic activity in some other manner than food service. Specifically, the Petitioner was offered the opportunity to help "set up" the picnic area. Petitioner did not accept the alternative offer to assist in the outing. Instead, Petitioner was offended and felt that he was unreasonably singled out due to his psoriasis. Nonetheless, the reaction by other employees to having Petitioner serve food and the response by Hicks to offer an alternative opportunity to assist in the activity did not constitute harassment or unreasonable conduct toward Petitioner.

      
      

   9. In association with the picnic for the spring of 1991, Bobby Thigpen, a supervisor with Respondent, made a comment to Petitioner about Petitioner's psoriasis and Petitioner's participation on the food committee at the picnic. Although Petitioner was mindful of Thigpen's candor about the subject, Thigpen's remarks contributed to Petitioner's hurt feelings concerning other employees not wishing Petitioner to serve food at the picnic. The remarks by Thigpen were not designed to harass Petitioner based upon Petitioner's physical condition.

      
      

   10. In addition, Petitioner did not report Thigpen's remarks to his supervisor pursuant to Respondent's "No

       times relevant to the inquiry, prohibited harassment on the basis of handicap status as well as other protected categories. The policy instructed the employee who believed that he had been harassed to bring the matter to the supervisor or to the Human Resource Department within the organization if the employee did not feel that he could discuss the matter with his supervisor.

       Respondent's employees are required to attend an annual meeting to review this policy. Petitioner did not complain to the Human Resource Department that he had been harassed by Thigpen through Thigpen's remarks regarding Petitioner's service on the food committee.

       
       

   11. No other competent proof was offered to the effect that Respondent's employees had made derogatory comments about Petitioner's physical disabilities.

   12. Because Petitioner's psoriasis was in a more severe condition, Petitioner would leave flakes of skin on chairs in the Water and Sewer Department break-room. When the Petitioner's co

       residue they would switch chairs rather than sit in the chair on which Petitioner had left flakes of skin. Although Petitioner found out that the other employees were switching chairs due to the flakes of Petitioner's skin being found on the initial chair, there is no competent proof that any employee ever commented to the Petitioner that the employee would be opposed to the Petitioner eating in the break-room due to his physical condition.

       
       

   13. Petitioner, together with other employees who were supervised by Dan Miller, had been harassed by Miller at times relevant to the inquiry. In Petitioner's instance, Miller's harassment was not directed to Petitioner's physical disabilities. Some of the remarks made by Miller to Petitioner were that Petitioner was short and fat and further derogatory comments about Petitioner's haircut and clothes. Miller had also called the Petitioner dumb or stupid because Petitioner asked Miller to repeat instructions over the radio that was used for communicating between the supervisor and his respective employees. Notwithstanding Petitioner's contention that he had told Miller that he was having trouble hearing because of psoriasis that had spread to Petitioner's ears, Miller denies that Petitioner had told Miller that psoriasis was affecting Petitioner's hearing, and Miller's testimony is credited. On the contrary, without knowledge of any physical disability concerning hearing which Petitioner had, and without regard for the reaction any other employees which Miller supervised might have, Miller made insulting comments to employees which he supervised when talking to them on the radio. Employees other than Petitioner to whom the insulting comments were directed had no known physical disabilities.

       
       

   14. James Scarberry, a co-employee who worked for Miller, overheard Miller yell at Petitioner on occasion having to do with Petitioner's job performance, not Petitioner's physical disability related to hearing.

       
       

   15. Petitioner asked Miller and a co-worker not to smoke in his presence because he had recently had bladder cancer surgery. Petitioner contends that this request was met with laughter and jokes. Miller testified that the request was not met with jokes or laughter. Instead, Miller recalls, and his testimony is credited, that Petitioner complained that Al Nichols, a co-worker, had smoked excessively in Petitioner's presence. The subject of Nichols' and Miller's smoking in Petitioner's presence was discussed among Miller, Nichols and Respondent, and it was agreed that Nichols and Miller would try not to smoke excessively in Petitioner's presence. No medical evidence was presented which tended to identify the necessity for Petitioner to be afforded a smoke environment due to his medical condition or that Petitioner had ever made requests other than that directed to Miller and Nichols regarding not smoking in his presence at work.

       
       

   16. Petitioner had made requests that he be provided light duty because of the problems he experienced with his knees due to psoriasis. These requests were directed to Miller, Petitioner's immediate supervisor. The requests were not always granted. When Petitioner was turned down for light duty it was based upon the fact that light duty was generally not available in the Water and Sewer Department for any employee. Moreover, at that time, employees in Petitioner's work assignment usually worked alone and it would adversely affect the production of the unit if two repairmen were dispatched to do a job which would

       ordinarily take only one repairman to complete. Petitioner presented no proof concerning denial of light duty at a time when a physician may have specifically recommended light duty for Petitioner.

       
       

   17. Concerning discipline directed to the Petitioner, on March 18, 1982, Petitioner stopped at a job site to which he had not been assigned. There he engaged David Lipps, an employee of Respondent, in a conversation. Lipps was a supervisor at the site and the conversation had to do with the meal policy which had been applied at the site. Eventually the conversation became an argument, at which point Lipps told Petitioner that he did not belong at the job site and asked him to leave. Lipps then reported the incident to his supervisor, Rodney Thompson and the matter eventually came to the attention of Hicks. Hicks discussed the matter with the Petitioner and Lipps and concluded that Petitioner had no business purpose for being at the Lipps' job site and that Petitioner was responsible for causing the argument with Lipps. Petitioner was issued a written warning on March 26, 1992. The disciplinary reprimand was not related to Petitioner's physical disabilities.

       
       

   18. On May 18, 1992, Petitioner received a written reprimand. The reprimand was based upon the Petitioner's conduct while on weekend standby duty. This assignment was in keeping with the periodic requirement to serve on weekend standby. On May 16, 1992, Petitioner was on a standby status with Lipps. Lipps was referred to as the "A" worker and Petitioner was the "B" worker. The "A" worker was in charge of the work team. Petitioner arrived at the first job site

       34 minutes before Lipps. When Lipps arrived, Petitioner complained that Lipps was an hour late. Petitioner then told Lipps that he had somewhere else to go that day. Lipps and Petitioner went to a second job and by that time Lipps told Petitioner that he was tired of Petitioner's complaining about having to work that day and concluded that Lipps did not have Petitioner's full cooperation.

       As a result, Lipps determined to leave the completion of the second job until the following Monday. Lipps reported the incident to his supervisor, Rodney Thompson. Petitioner had been previously counseled about his attitude concerning standby duty. Hicks reviewed the facts surrounding Lipps' complaint and decided to issue a written reprimand to Petitioner for making negative verbal remarks about Petitioner's duties and for failing to cooperate with his supervisor on standby duty. The disciplinary action was not for purposes of discriminating against Petitioner because of Petitioner's physical disabilities.

       
       

   19. Moreover, Hicks had reprimanded two other employees, Ed Swift and Bob Buckley for making negative verbal comments about job duties. Hicks did not know these other individuals to be suffering from any form of physical disability.

       
       

   20. In June of 1992, Petitioner applied for and was granted a leave of absence for an unspecified period. By June 2, 1992, Petitioner knew that he would need to go on extended leave beginning June 8, 1992. He failed to inform any of his supervisors that he was going on this medical leave. He did not show up for work on June 8, 1992. Hicks inquired of Petitioner on June 8, 1992, about not telling his supervisor that he was going to be on medical leave. Petitioner responded to the inquiry by indicating that he had told Scarberry, Petitioner's co-worker, of his intention to go on medical leave and that he had told a city clinic nurse that he was going on leave of absence. Hicks pointed out, correctly, that telling the nurse and Scarberry of Petitioner's intentions to take medical leave did not relieve Petitioner of the duty to directly inform a supervisor of that intention. Moreover, Scarberry had told the Petitioner that he, Scarberry, would not be at work the first day of Petitioner's medical leave, making it questionable that Scarberry would have advised a supervisor

       that Petitioner was hoping to be absent from work that day. Scarberry made Hicks aware that Scarberry had pointed out to Petitioner that he would not be at work on June 8, 1992. Petitioner's assertion that he wrote a note to his immediate supervisor, Miller, regarding the plan to be out on June 8, 1992, if true, is of no utility because the note was not given directly to Miller and was never indirectly received by Miller. Miller had not been at work June 5, 1992, the friday before Petitioner was missing from his job duty on June 8, 1992.

       Petitioner knew that Miller was not at work on June 5, 1992.

       
       

   21. As a consequence of not informing a supervisor that he was going to be on extended medical leave, Petitioner was disciplined. The action by Respondent on which Petitioner was given a written reprimand for failure to inform a supervisor that Petitioner was going to take extended medical leave did not constitute discrimination against Petitioner based upon his physical disabilities. Petitioner was allowed to take the extended medical leave.

       
       

   22. Noel Werner, a secretary in the Water and Sewer Department had also been reprimanded by Hicks for failing to follow proper procedures for obtaining authorization to take medical leave. Hicks is unaware of any physical disability that Ms. Werner may have.

       
       

   23. When Petitioner took leave in June of 1992, he believed that he would be eligible for Disability Income Replacement. However, in August 1992, Petitioner was informed that the Respondent's Risk Management Department had determined that he was ineligible because he was under the care of a licensed health counselor as opposed to an M.D. or a Ph.D. Carol Ingham, Respondent's Human Resource Director, learned of this circumstance and contacted the Assistant City Manager, Dick Lewis, and requested that Petitioner be granted an exception to the policy of not being eligible for Disability Income Replacement when using a licensed health counselor. As a result, Petitioner's request was reevaluated and he was ruled eligible for Disability Income Replacement through the policy pertaining to that status for the period August 4 through 30, 1992.

       
       

   24. Concerning his physical condition, in the spring of 1992, Petitioner was diagnosed with osteoarthritis in his knees. This meant he was disabled to do any persistent bending or kneeling, which was a requirement of his employment in the Water and Sewer Department. His condition also disabled him from doing his assigned work because his work as a water meter repairman involved walking distances of a 100 feet or more on a persistent basis and standing all day.

       
       

   25. Concerning the medical leave of absence which Petitioner took in the summer of 1992, this subject was discussed by Ingham in conversation with the city clinic nurse, Holly McLaughlin. They talked about the stress which Petitioner seemed to be experiencing and the failure to follow the policy of informing his supervisor of his intention to take medical leave. On June 15, 1992, Ms. Ingham met with Petitioner and his wife to discuss Petitioner's stress. At that time, Petitioner reported to Ms. Ingham that Petitioner's supervisor Miller had treated him badly and that Miller had also treated other employees badly. Petitioner told Ingham that Miller had called Petitioner stupid and had been abusive in conversation over the radio. No claim was made by Petitioner that Miller had made comments directed to Petitioner's physical disabilities.

       
       

   26. As a follow

       Ingham discussed Petitioner's remarks about Miller's conduct with a number of the Petitioner's co-workers. Ingham decided that Miller had, in fact, yelled

       and cursed at a number of employees he supervised, to include Petitioner. No other employee reported to Ingham that Miller had made derogatory comments in their presence concerning Petitioner's physical disabilities.

       
       

   27. Based upon Ingham's findings, Hicks determined to discipline Miller for his conduct directed toward employees whom Miller supervised. Miller received a written reprimand and was given the option of being demoted or seeking counseling through an employee assistance program. Miller opted to go to the employee assistance program. Moreover, Miller was told that if conduct toward subordinates continued that he would be subject to more severe discipline to include discharge. Miller's treatment of the employees he supervises has improved since the imposition of discipline.

       
       

   28. Petitioner returned to work in August 1992, following his leave of absence for medical purposes. At that time, he was issued a service truck which another employee had been using. Petitioner felt that he should have been issued a new truck which the Water and Sewer Department operated. The truck that Petitioner had been issued was dirty and smelly. Miller told Petitioner that the newer truck was assigned to an employee who needed the larger truck because that employee would be performing heavier work than Petitioner would be called upon to perform. Miller offered to have the truck which Petitioner had been issued cleaned up or detailed. Petitioner declined that offer. Petitioner complained about the truck that he had been assigned to a co-worker, Fred Sauls. He told Sauls that he was going to take the truck he was issued and drive it to city hall to show Ingham, the Human Resource Director. In fact, Petitioner reported the incident to Ms. Ingham.

       
       

   29. The Petitioner received a letter of reprimand on September 4, 1992, for complaining to a co-worker and Ms. Ingham about an everyday work related problem rather than following the chain of command. Prior to receiving that written reprimand, Petitioner had been specifically counseled by Hicks concerning handling everyday work related problems through Petitioner's supervisor. Those specific instructions on everyday work related problems were not countermanded by the general opportunity which Hicks had described for employees to go outside the chain of command when they did not feel that they would get satisfaction from an immediate supervisor, and the open door opportunity to consult with the Human Resource Director. In this instance, the response from Miller was adequate to meet Petitioner's needs in confronting an everyday work related problem and Petitioner had no reason to complain to Sauls or to complain to Ingham. The written reprimand given to Petitioner was not designed to discriminate against Petitioner based upon his physical disabilities.

       
       

   30. Hicks and Ingham became aware of the Petitioner's inability to perform his assigned job duties due to his physical disabilities and they looked for other duties that the Respondent might be able to perform in view of his physical disabilities. The only positions that were found for which Petitioner was otherwise qualified and physically able to perform were part-time positions that did not offer medical benefits. Upon further reflection, Ingham and Hicks offered to combine these two positions in the Respondent's Recreation Department into a single job which would allow Petitioner to continue working and to receive benefits. The combined position was at a lesser pay than the present position which he held. Petitioner decided that he would prefer to be placed in the status of Disability Income Replacement in lieu of the combined jobs. In April 1993, Petitioner accepted the status of Disability Income Replacement and has not returned to work.

       CONCLUSIONS OF LAW

       
       

   31. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action in accordance with Section 120.57(1), Florida Statutes.

       
       

   32. Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person with respect to terms and conditions of employment because of the person's handicap. This reference would include the form of physical disabilities related to psoriasis, osteoarthritis and bladder cancer which Petitioner suffered at times relevant to the inquiry.

       
       

   33. In determining whether Petitioner has suffered discrimination in the manner alleged, the legal principles and precedents set forth under Title VII, of the Civil Rights Act of 1964, as amended, 42 U.S.C., and the Americans with Disabilities Act, 42 U.S.C., pertain. See Hargis v. Leon County School Board, 400 So.2d 103 (Fla. 1st DCA 1981).

       
       

   34. Petitioner must prove his allegations by a preponderance of the evidence.

       
       

   35. Petitioner has proven that he is handicapped within the meaning of Section 760.10, Florida Statutes, and that Respondent is an employer under that provision. Petitioner has failed to prove that Respondent has unlawfully discriminated against Petitioner based upon his physical handicap due to his working conditions or the employee discipline imposed against him. Nor has Petitioner shown that he was unlawfully harassed by Respondent's employees due to his physical handicap, in a setting in which Respondent condoned a hostile working environment concerning Petitioner's claims of harassment by other employees based upon Petitioner's physical handicap.

       
       

   36. The work environment which Petitioner was subjected to was not permeated with discriminatory intimidation, ridicule or insult, so severe and pervasive as to alter the conditions of Petitioner's employment and create an abusive working environment. The working environment did not unreasonably interfere with Petitioner's ability to accomplish his job.

       
       

   37. Respondent made reasonable attempts to maintain a workplace free from discriminatory conduct to include a "No Harassment" policy. Respondent has been shown to have investigated Petitioner's claims of harassment in a prompt manner and to have taken appropriate action against harassment, although that form of harassment was not directed toward Petitioner's physical handicap. This speaks to the actions taken against supervisor Miller for harassing Petitioner and other employees for reasons unrelated to Petitioner's physical handicap.

       
       

   38. The comments and conduct concerning service on the picnic committee that were made and carried out by Respondent's employees and condoned by Respondent does not constitute discrimination or harassment directed to Petitioner based upon his physical handicap. Even if so perceived, they constitute an isolated incident unrelated to Petitioner's everyday work assignment and insufficient, standing alone, to support a claim of handicap discrimination or harassment. In addition, the incident concerning the picnic occurred two years before the petition of claimed discrimination or harassment based upon physical handicap was filed and the request for relief on that basis is untimely. Petitioner failed to prove any other conduct that could be

       considered harassment directed to Petitioner's physical handicap by other persons employed by Respondent in a setting where Respondent condoned a hostile working environment pertaining to that alleged harassment.

       
       

   39. While the Petitioner has made a prima facie showing that he was physically handicapped and was subjected to disciplinary action as an employee, Respondent has articulated legitimate nondiscriminatory reasons for imposing the discipline. In turn, Petitioner has failed to demonstrate that the reasons given for imposing the discipline were not legitimate and were, in fact, a mere pretext for discriminating against Petitioner's physical handicap.

       
       

   40. Respondent's treatment of Petitioner concerning the conditions of his employment reasonably took into account Petitioner's physical handicap. This pertains to the exercise of leave policy, and duty assignment.

RECOMMENDATION

Based upon the findings of fact and conclusions of law reached, it is, RECOMMENDED:

That a final order be entered by the Florida Commission on Human Relations which dismisses the Petitioner's claims.

DONE and ENTERED this 13th day of June, 1994, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1994.

APPENDIX

The following discussion is given concerning the Proposed Findings of Fact of the parties:

Petitioner's Facts:

Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 14 are contrary to facts found.

Respondent's Facts:

Paragraphs 1 through 26 are subordinate to facts found.

COPIES FURNISHED:

William A. Ramputi, Esquire Scott, Gleason & Pope, P.A.

409 Southeast Fourteenth Street Ocala, Florida 34471

David H. Spalter, Esquire Fisher & Phillips

2310 One Financial Plaza

Fort Lauderdale, Florida 33394

Sharon Moultry, Clerk Human Relations Commission Building F Suite 240

325 John Knox Road Tallahassee FL 32303-4149

Dana Baird, General Counsel Human Relations Commission Building F Suite 240

325 John Knox Road Tallahassee FL 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-005329

Orders for Case No: 93-005329